Thornton v. DanielsThornton v. Daniels
STEPHEN H. ANDERSON, Circuit Judge.
After examining the briefs and appеllate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See
Applicant and appellant, Harold Jerome Thornton, proceeding pro se, appeals the denial of his application for a writ of habeas corpus pursuant to
BACKGROUND
Mr. Thornton is a prisoner in the custody of the United States Bureau of Prisons, currently housed at the United States Penitentiary (“USP“) in Jonesville, Virginia. This аppeal stems from an Incident Report issued to Mr. Thornton while he was housed at the USP in Allenwood, Pennsylvania. While there, Mr. Thornton was issued Incident Report No. 2156390, in which he was charged with possessing two weapons in his cell. At the Discipline Hearing Officer (“DHO“) hearing, Mr. Thornton pled guilty to the charge. On June 8, 2011, the DHO imposed a sanction of, inter alia, forfeiture of forty days of good time credits.
Instead of resubmitting his appeal, on November 9, 2011, Mr. Thornton attempted to appеal from the Regional Director‘s rejection of AR 663926-RI to the Central Office. On November 17, 2011, the Central Office rejected the appeal on the ground that Mr. Thornton was required first to file a completed BP-10 form with the Regional Office. He was advised to resubmit his appeal to the Regional Director for review and determination, and to provide the Regional Director with a copy of the DHO Report and/or identify the charges and the date of the DHO action and sanctions.
On December 2, 2011, Mr. Thornton resubmitted his appeal to the Regional Director. This appeal (denominated AR 663926-R2) was rejected on procedural grounds as untimely. Mr. Thornton was also advised that, in view of its untimeliness, he needed to provide verification by the BOP staff of the reason or reasons the appeal was untimely.
On January 27, 2012, Mr. Thornton attempted to appeal the rejection of AR 663926-R2 to the Central Office. The Central Office, in turn, rejected the appeal (in a document denominated AR 663926-A2) on the ground that Mr. Thornton needed to submit his appeal first to the Regional Office for its decisiоn, and to provide the Regional Office with a copy of the DHO report and/or identify the charges and date of the DHO action.
More than a year later, on March 18, 2013, Mr. Thornton attempted to refile AR 663926-A2 at the regional level. This appeal (designated AR 663926-R3) was rejеcted on procedural grounds as untimely, and Mr. Thornton was advised that he had failed to follow the instructions given to him previously to provide staff verification for his untimely appeal. Mr. Thornton has not attempted to resubmit AR 663926-R3 at any level of the administrative process.
In the meantime, on November 8, 2011, Mr. Thornton attempted to file directly with the Central Office a second administrative remedy challenging the DHO‘s findings in the original Incident Report 2156390. That administrative remedy was designated AR 665083-A1. This appeal was rejected on procedural grounds becаuse he submitted the remedy to the wrong level or office. Mr. Thornton was advised that he must “first file a BP-10 with the regional office.” Lundy Decl. at ¶ 19; R. Vol. I at 75. Mr. Thornton did not resubmit AR 665083-A1 at any level of administrative review.
Mr. Thornton then filed with the federal district court his application for a writ of habeаs corpus, pursuant to
In his amended
The government filed a response to Mr. Thornton‘s amended habeas application; Mr. Thornton declined to file a reply.
The district court dismissed the habeas application. The court dismissed claims one and two for failure to exhaust administrative remedies. The court dismissed claim three for lack of jurisdiction, on the ground that Mr. Thornton had an adequate and effective remedy in
DISCUSSION
“We review the district court‘s dismissal of a
As the district court explained, consistent with our Garza decision, Bureau of Prisons (“BOP“) regulations “require a prisoner to attempt informal resolution of a complaint and, if that fails, to submit a formal request for an administrative remedy to the institution.” Id. at 1204; see
If an inmate fails to comply with the procedural requirements of the administrative remedy process, a request may be rejected at any stage of the process.
As indicated, an inmate has twenty days to appeal the DHO‘s decision to the Re
He did, however, make efforts to belatedly exhaust his remedies. As indicated, his initial attempted appеal of the DHO sanction was filed some five months late, and omitted required information. The Regional Director rejected the appeal on November 8, 2011, because Mr. Thornton failed to provide the Regional Office with a copy of the DHO Report or otherwise identify the charges and dates of the DHO action. He was given ten days to resubmit his appeal, but failed to do so.
Instead of resubmitting his appeal with the correct information, Mr. Thornton attempted to appeal the Regional Director‘s rejection of AR 663926-R1, but the Central Office, in turn, rejected his appeal, and Mr. Thornton was again told he needed to provide a copy of the DHO Report or to identify the charges and date of the DHO‘s action. On December 2, 2011 (long after the expiration of the ten-day-period he hаd been given in which to resubmit to the Regional Director his rejected appeal), Mr. Thornton did resubmit his appeal (AR 663926-R2) to the Regional Director. It was again rejected, this time as untimely and without verified explanation for its untimeliness. He then attempted to appeal the rejection of AR 663926-R2 to the Central Office, but the Central Office rejected the appeal, again telling Mr. Thornton that he needed to provide a copy of the DHO report and/or provide more information about the DHO action. It appears that Mr. Thоrnton has never provided that information to the Regional Director or the Central Office. Furthermore, although he was repeatedly asked to provide some excuse or reason for his untimely filings, with verification by BOP staff, he never did so.
The Supreme Court has stated that “рroper exhaustion of administrative remedies ... ‘means using all steps that the agency holds out, and doing so properly.‘” Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Mere “good-faith efforts to comply with grievance procedures ... do[ ] not excuse failure to exhaust.” Bridgeforth v. Workman, No. 10-7059, 410 Fed.Appx. 99, 100-01, 2010 WL 5018240, at *1 (10th Cir. Dec. 9, 2010) (unpublished).1 The record in this case shows that Mr. Thornton failed to comply with the BOP‘s grievance procedures. And while we afford Mr. Thornton‘s filings a liberal construction, we will not excuse his failure to comply with the rules of procedure or the regulatory grievance structure. See Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir.1994).2
As indicated above, a “narrow exception to the exhaustion requirement applies if an applicant can demonstrate that exhaustion is futile.” Garza, 596 F.3d at 1203. Mr. Thornton argues that “Case Manager T. Burke would not provide the proper forms for grievance.” Appellant‘s Op. Br. at 5. Nonetheless, he attached to his amended habeas application a copy of a November 28, 2011, Memorandum for Administrative Remedy File, which was prepared by his unit mаnager and which states that the manager had provided Mr. Thornton with “documents” he needed for his appeal of “incident report number 2156390.” Memorandum, attached to Petition for Writ of Habeas Corpus. He never has shown that he presented to any appellatе body the materials or information which he was repeatedly told he needed to provide, nor has he provided any evidence or record support for any claim that he was prevented from providing such materials or information.
In any event, we agreе with the district court that Mr. Thornton failed to establish that the futility exception to the exhaustion requirement applies to his case. The district court properly dismissed the first two claims of Mr. Thornton‘s amended habeas application.
Mr. Thornton‘s third (and final) claim in his amended petition asserted that the sentencing court unlawfully enhanced his sentence with prior convictions and failed to comply with the procedural requirements of
As the Respondent points out, Mr. Thornton does not challеnge this conclusion by the district court. Rather, he raises a number of other unrelated issues, none of which he raised below. He has accordingly waived any objection to the district court‘s disposition of claim three in his amended habeas application. Furthermorе, we need not address the issues Mr. Thornton raises for the first time in his appellate brief. See Fischer v. Forestwood Co., Inc., 525 F.3d 972, 978 n. 2 (10th Cir.2008) (“[A]rguments not raised in the district court are waived on appeal“) (citing Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167 (10th Cir.2005)).
CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s Order of Dismissal, and we DENY Mr. Thornton‘s request to proceed on appeal in forma pauperis.